October 3, 2013

Should downloading a few pics of child porn result in attorney's disbarment?

The question in the title of this post concerning a notable collateral consequence of some convictions is prompted by this fascinating cover story from the October 2013 issue of the California Lawyer magazine. (Hat tip: How Appealing.) The story is headlined "Unfit to Practice? The state Supreme Court must decide whether a lawyer's possession of child pornography requires summary disbarment," and here is how the piece begins:

Gary Douglass Grant is a lawyer with a big problem.
In 2007 the civil litigator and former captain in the Army Reserves, now 56, was a JAG lawyer assigned to Los Alamitos Army Airfield when an Immigration and Customs Enforcement (ICE) operation in Virginia tracked hits on approximately 18 commercial child pornography websites. ICE agents in Project Flicker, as it was known, located a number of active and retired military members, civilians, and contractor employees - several of whom had Top Secret or higher clearances - who allegedly used their military email addresses to register for PayPal accounts to access the images.

One of the 16 individuals identified that summer was Gary Grant. A search of computers at his Aliso Viejo home revealed that he had sent over the Internet an image depicting minors engaged in sexually explicit conduct; Orange County sheriff's deputies arrested him a year later. Investigators had found that between 2001 and 2007 Grant accumulated more than 100,000 digital pornographic images, much of it legal adult material. But mingled among those images were pornographic pictures of children. An analyst who examined the seized files found 19 photos and a videotape of youths who appeared to be between 14 and 16 years old - "possibly minors."

The Orange County District Attorney charged Grant with three counts of California Penal Code section 311.11(a), possession of obscene matter of a minor in a sexual act. Prosecutors gave Grant and his lawyer a CD with at least 100 sexual images of children retrieved from Grant's computers.

From the outset, Grant gave specific orders to his criminal defense attorney: "Defend this to the nth degree, because no way, no how, did I knowingly possess child pornography."

Ultimately, though, Grant conceded there were sexual images of underage girls on his computer. He said he had found the photos repugnant and deleted them. But even deleted images may remain on a hard drive, and that's where forensic computer analysts in this case located them. In April 2009 Grant admitted he had temporarily possessed two "unsolicited electronic images" of children, received by email while he was downloading other pornography. He pleaded guilty to one count of felony possession; prosecutors agreed to drop the other two charges. The judge sentenced Grant to 90 days in jail and three years of probation, and ordered him to register as a sex offender for the rest of his life. He did not appeal his conviction or sentence.

Grant joined a twelve-step fellowship known as Sex and Love Addicts Anonymous. But by autumn he had violated the terms of his probation by downloading adult pornography to his computer and by "sex-texting" two former girlfriends. The violations brought Grant an additional 183 days of jail time - more than twice his original sentence.

Based on the felony conviction, the State Bar of California automatically placed Grant on interim suspension pending further disciplinary proceedings. A State Bar Court trial judge later recommended that Grant be disbarred because his felony involved moral turpitude. His lawyer challenged that characterization, and the severity of the discipline. When the Review Department recommended only a suspension, the prosecutors appealed. Now Grant's case is pending before the state Supreme Court, where it has been fully briefed and awaits oral argument. (In re Grant, No. S197503 (Cal. Sup. Ct).)

At issue is the State Bar's ability to exact the ultimate sanction - disbarment - pursuant to a summary procedure that permits neither consideration of mitigating factors nor whether that sanction is appropriate. What began as one man's compulsion to accumulate pornography has become a challenge to the moral-turpitude-per-se standard, and the State Bar's procedures associated with it. Ultimately the Grant case could result in changes to disciplinary proceedings that affect hundreds of matters.

Comments

Sounds unreasonably harsh to me.

Posted by: Just Plain Jim (Just Another Guy) | Oct 3, 2013 8:00:35 AM

"Unreasonably harsh"? Really? In addition to possession >100 pics (which the title of the post calls "a few"), Grant also distributed an image. To contend that he should continue practicing law and being an officer of the court is beyond offensive.

Posted by: J.D. | Oct 3, 2013 9:43:27 AM

As this issue begins to have an affect on our judicial system by directly affecting attorneys, judges, etc., maybe some rational thinking concerning sex offender management will take hold.

A former judge in Oklahoma is on the SOR for using a "penis pump" on the bench.

As a SO, I have sympathy for anyone who gets caught up in this issue. However, I have much more sympathy for the victims.

Posted by: Oswaldo | Oct 3, 2013 10:54:36 AM

I find it strange that downloading adult pornography and sexting former girlfriends (perfectly legal actions) would be such a big violation of his probation to get additional 183 days of jail time. His disbarment is very unfortunate but when looking at the situation at an ethical standpoint, it is an appropriate punishment. As a lawyer, He should have known better.

This situation is very unfortunate but when looking at it from an ethical standpoint, the punishment and disbarment is appropriate. I do find it strange that downloading adult pornography and sexting former girlfriends is such a big violation of his probation that it lands him another 183 days in jail. As a lawyer, he should have known better.

19 photos out of 100,000 images that were "possibly minors". I find it disturbing that such testimony satisfies probable cause, much less a conviction.

Posted by: Ala JD | Oct 3, 2013 1:35:01 PM

But if Joe blow off the street did it, he would get big time JAil from the Feds....

Whats the logice here, if Jack Camp can get off what he did with 30 days and a Misdemeanor, this guy should get off 100% free?

Posted by: MidWest Guy | Oct 3, 2013 2:17:21 PM

Daniel. Your thoughts. It is the standard of due lawyer care to demand all personal and work computers of the prosecution, their agents, the police, and of the judge. The justifications are improper motive and pro government bias, respectively. The real purpose is to search for child porn for a clean hands defense, to have the enemies of your client swept up in lengthy FBI investigations, and to deter them.

Never been done. Why not? You owe your job more to the prosecutor than to the client, i understand. But you should take some pride in your craft, and get more aggressive.

I think this raises an important question many have asked about CP sentences--the condition that one refrain from adult pornography. I am not aware of ANY empirical evidence supporting such a condition, and a few experts I have spoken with state that it may in fact make re-offending more likely by prohibiting any legal means to satisfy an urge to view pornography. Like saying an alcoholic cannot have any beverages because it might lead him to alcohol.

Posted by: Margie | Oct 3, 2013 3:20:11 PM

A study of internet porn was canceled before it could begin. The design required a comparison control group of people who did not download internet porn. None could be recruited or found.

Why are the computers of the federal thugs sacrosanct from ordinary discovery?

I have always stated that if the public were oppressed by the hierarchy of the traitor lawyer profession, the lawyer was doubly so, no matter how powerful, rich, slick, or charitable, and the regular street judge, triply so. Once these traitors are eradicated, the lawyer and judge will be liberated, and not just the public. The profession will quadruple its income, and its public esteem will grow a full order of magnitude.

This lawyer did not get a defense "to the nth degree," and was betrayed by his defense lawyer who failed to carry out the above stated duty. This lawyer was intimidated by the sub-human vermin in the hierarchy of the profession. The State Bar of California are the enforcers for it. I have had dealings with them, and they are extremely tough thugs. I dropped the planned multi-directional, rapid fire legal attacks on them for their violation of federal laws, only at the request of people I cared about. However, in this lawyer's case, no mercy should be shown these cult criminals.

In Ohio, long after the Nuremberg Trials, a judge ordered a female sterilized.

She was sterilized.

He lost his claim of immunity because he had zero jurisdiction of the subject matter.

There was not a keystroke nor a sound byte of discipline.

A Franklin County judge recently usurped the jurisdiction of another court in an ex parte hearing , bragged about it , yet avoided sanction .

¿ IF an attorney were to possess or share images of two age 17 year 11 month minors who have been engaging in sexual contact and sexual conduct for the preceding three years ; then disbarrment is appropriate to protect the public ?? ‼

I witnessed an Ohio judge repeatedly use the a Punishment by Analogy protocol to punish innocent defendants.

He ought to have been removed from the bench by the Supreme Court.

He was removed by death (which though untimely , was far quicker).

The public in CA would be protected with a term or indefinite suspension .